Wednesday, May 29, 2013

Association Of Battery Recyclers v. U.S. EPA

May 28: In the U.S. Court of Appeals, D.C. Circuit, Case No. 12-1129, consolidated with 12-1130, 12-1134, 12-1135. On Consolidated Petitions for Review of Final Action of the U.S. EPA. The case considers challenges to EPA's revised emissions standards for secondary lead smelting facilities. The Appeals Court indicates that it finds petitioners' claims "unpersuasive, foreclosed by Circuit precedent, or otherwise barred from review" and denies in part and dismisses in part the petitions for review.
 
    By way of background, in 2012, acting pursuant to sections 112(d)(6) and 112(f)(2), EPA revised the 1995 emissions standards for secondary lead smelting facilities, reducing allowable emissions by 90% -- from the 2.0 milligrams per dry standard cubic meter (mg/dscm) previously permitted to 0.2 mg/dscm -- and requiring smelters to totally enclose certain "fugitive" emission sources. Several industry groups and environmental groups filed petitions for review. Environmental and industry petitioners intervened as respondents in one another's cases, and RSR Corporation intervened both as a petitioner and as a respondent.
 
    Industry petitioners first argue that the Secondary Lead Rule impermissibly regulates elemental lead as a HAP [hazardous air pollutants]. Secondly, they argue that the prevention of significant deterioration (PSD) program regulation of the substances is duplicative and unlawful. They also challenge EPA's methodology for estimating fugitive emissions and EPA's reliance on the estimates to conclude that total enclosure of fugitive emission sources was warranted; and they challenge the Rule's requirement of lead continuous emissions monitoring systems (CEMS). Industry petitioners also argued that EPA's decision to revise emissions standards under section 112(d)(6) was arbitrary and capricious, plus additional claims. All were rejected by the Appeals Court.
 
    The Appeals Court indicates that environmental petitioners' challenge fails on the merits. Their primary argument is that, when EPA revises emissions standards under section 112(d)(6), it must recalculate the maximum achievable control technology in accordance with sections 112(d)(2) and (d)(3). The Appeals Court said their argument is barred by a previous 2008 decision. Next, they argue that EPA impermissibly considered cost in revising emissions standards under section 112(d)(6). The Appeals Court said, however, ". . .given that EPA has no obligation to recalculate the MACT floor when revising standards, see supra at 8–9, and given that section 112(d)(2) expressly authorizes cost consideration in other aspects of the standard-setting process, we believe this clear statement rule is satisfied."
 
    Finally, the Appeals Court said, ". . .environmental petitioners have failed to show that EPA acted arbitrarily and capriciously when it decided not to impose more stringent emissions standards based on certain technological developments -- namely, high efficiency particulate air (HEPA) filters and wet electrostatic precipitators (WESP). EPA reasonably explained that further reductions were unwarranted due to concerns about the feasibility, utility, cost-effectiveness, and adverse collateral environmental impacts associated with this technology, and petitioners point to no 'clear error of judgment' reflected in this reasoning." Additionally, one Justice concurred but wrote separately "to explain more completely why it is appropriate for us to hold that intervenor RSR Corporation lacks prudential standing."
 
    Access the complete opinion (click here). [#Air, #Toxics, #CADC]
 
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